BEFORE THE ILLINOIS POLLUTION CONTROL BOAR
C&F PACKIG COMPANY, INC., an
Ilinois corporation,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY and LAK
COUNTY,
Respondents.
)
)
)
)
)
)
)
)
)
)
)
)
PCB 05-
(Variance Petition)
NOTICE OF FILING
To: Division of
Legal Counsel
Ilinois Environmental Protection Agency
1021 North Grand Avenue East
Springfield, Ilinois 62794-9276
Lake County Departent of
Public Works
Lake County
650 West Winchester Road
Libertyville, Ilinois 60048
PLEASE TAK NOTICE that I have today filed with the Office of the Clerk ofthe
Pollution Control Board the Petition for Variance ofC&F Packing Company, Inc., a copy
of
which is herewith served upon you.
7Jt4U
Brett D. Heinrch
October 28, 2005
Brett D. Heinrch
Meckler Bulger & Tilson LLP
123 North Wacker Drive, Suite 1800
Chicago, Ilinois 60606
Phone: (312) 474 -7900
Fax: (312) 474 - 7898
Brett.heinrch(êmbtlaw.com
* * * * * PCB 2006-053 * * * * *
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 28, 2005
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served a copy of C&F Packing Company,
Inc.' s Petition for Variance with exhibits, via Federal Express, Saturday delivery, and
certified mail on or before 5:00pm on October 28,2005, upon the following:
Division of Legal Counsel
Ilinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Ilinois 62794-9276
Lake County Department of
Public Works
Lake County
650 West Winchester Road
Libertyville, Ilinois 60048
6~~
Brett D. Heinrch
October 28, 2005
Brett D. Heinrch
Meckler Bulger & Tilson LLP
123 North Wacker Drive, Suite 1800
Chicago, Ilinois 60606
Phone: (312) 474 - 7900
Fax: (312) 474 -7898
Brett.heinrch(êmbtlaw.com
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 28, 2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOAR
C&F PACKIG COMPAN, INC., an )
Ilinois corporation, )
)
Petitioner, )
)
v. )
)
ILLINOIS ENVIRONMENTAL )
PROTECTION AGENCY and LAK )
COUNTY, )
)
Respondents. )
PCB 05-
-
(Variance Petition)
APPEARACE
I hereby file my appearance in this proceeding, on behalf of C&F Packing Company, Inc.
-:~fff) ll. ..J!
Brett D. Heinrch
October 28, 2005
Brett D. Heinrch
Meckler Bulger & Tilson LLP
123 North Wacker Drive, Suite 1800
Chicago, Ilinois 60606
Phone: (312) 474 - 7900
Fax: (312) 474 - 7898
Brett.heinrch(êmbtlaw.com
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 28, 2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOAR
C&F PACKIG COMPAN, INC., an )
Ilinois corporation, )
)
Petitioner, )
)
v. )
)
ILLINOIS ENVIRONMENTAL )
PROTECTION AGENCY and LAK )
COUNTY, )
)
Respondents. )
PCB 05-
-
(Variance Petition)
APPEARACE
I hereby file my appearance in this proceeding, on behalf of C&F Packing Company, Inc.
k-- WL
Matthew E. Cohn
October 28, 2005
Matthew E. Cohn
Meckler Bulger & Tilson LLP
123 North Wacker Drive, Suite 1800
Chicago, Ilinois 60606
Phone: (312) 474 - 7900
Fax: (312) 474 - 7898
matthew.cohn(êmbtlaw.com
This document has been printed on recycled paper.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 28, 2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOAR
C&F P ACKlG COMPAN, INC., an
Ilinois corporation,.
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY and LAK
COUNTY,
Respondents.
)
)
)
)
)
)
)
)
)
)
)
)
PCB 05-
(Variance Petition)
PETITION FOR VARANCE
Petitioner C&F Packing Company, Inc., ("C&F Packing") by its attorneys
Meckler Bulger & Tilson LLP, petitions the Ilinois Pollution Control Board (the
"Board") for a variance from a provision of ILL. ADMIN. CODE tit. 35, § 309.222(b)
(2004). C&F Packing seeks to be relieved from the requirement that the Lake County
Public Works Department ("Lake County" or the "Department"), as owner of an
intermediate receiving sewer, be required to certify on a permit application that adequate
capacity is available to transport the discharge proposed by C&F Packing. Regulation
ILL. ADMIN. CODE tit. 35, § 309.222(b) (2004) became effective on March 7, 1972, and is
therefore applicable to the permit application which is the subject of
this petition.
C&F Packing is requesting relief from this requirement from the Board because
the Departent is inappropriately withholding its certification of a permit application
which C&F Packing wishes to submit to the Ilinois EP A. The Department is refusing to
certify C&F Packing's permit application because of a dispute it has with the Vilage of
Lake Villa (the "Vilage" or "Lake Vila"), the municipality in which the C&F Packing
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 28, 2005
facility is located, over the payment of sewer connection fees that the Department
believes it is due under a 1991 agreement between Lake County and Lake Vila, a copy
of
which is attached hereto as Exhibit A. It is because of
Lake County's improper linking
of the certification of C&F Packing's permit application to its sewer connection fee
dispute with Lake Vila that C&F Packing seeks this variance. This Petition for Varance
("Petition") is brought pursuant to Section 35 of the Ilinois Environmental Protection
Act (the "Act"), 415 ILL. COMPo STAT. 5/35 (2004), and Part 104 of Chapter 35 of the
Ilinois Administrative Code, ILL. ADMIN. CODE tit. 35, § 104 (2004).
I. REGULATORY REQUIREMENTS FOR SIGNATURE BY THE LAK
COUNTY PUBLIC WORK DEPARTMENT
ILL. ADMIN. CODE tit. 35, § 104.204(a) (2004) requires that the Petition contain a
statement describing the regulation from which a variance is sought. C&F Packing has
requested that the Lake County Public Works Department certify its Supplemental Permit
Application to modify Permit 2002-EN-0089-1 (the "Supplemental Permit Application"),
a copy of
which is attached hereto as Exhibit B. Pursuant to ILL. ADMIN. CODE tit. 35, §
309.222(b) (2004), permit applications require multiple certifications from governental
units to verify the adequacy of sewage treatment and storage capacity. ILL. ADMIN.
CODE tit. 35, § 309.222(b) (2004) provides that
Permit applications for sewer constrction or modification shall be accompanied
by signed statements from the owners of all intermediate receiving sewers and the
receiving treatment works certifying that their facilities have adequate capacity to
transport and/or treat the wastewater that wil be added through the proposed
sewer without violating any provisions of
the Act and this Chapter.
The certification required on the Supplemental Permit Application (Section 7.4.1 of
Exhibit B) is as follows:
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 28, 2005
The sewers to which ths project wil be a trbutar have adequate reserve capacity to
transport the wastewater that will be added by the project without causing a violation
ofthe llinois Environmental Protection Act or Subtitle C, Chapter 1. . .
Signatue
Date
Title
This is the identical certification and form presented to Lake County that is contained in
C&F Packing's initial 2001 Permit Application and C&F Packing's 2002 Supplemental
Permit Application. Lake County certified the adequacy of the capacity on both of those
previous permit applications. Copies of the 2001 and 2002 permit application forms
(without appendices) which were certified by Lake County are attached hereto as
Exhibits C and D, respectively.
In its consideration of certification of the Supplemental Permit Application, the
regulations require Lake County to answer one question, and one question only: Is there
an adequate capacity in the Lake County sewer interceptor pipe to receive the flow from
the C&F Packing facility? As explained herein, the answer to this question is yes, and
Lake County is therefore required to certify the application.
Just as was the case in Hawthorn Realty Group. Inc. v. Ilinois Environmental
Protection Agency and Village of Lincolnshire, PCB 85-85, 1985 WL 21548, *2 (Oct.
10, 1985), the factual question presented to the Lake County Public Works Department
deals solely with capacity. If the answer to the above question is affirmative, then the
regulation requires that the Department certify the Supplemental Permit Application. It is
improper for the Deparment to withhold its signatue for reasons other than a finding of
inadequate capacity, and as explained herein, the Department has done just that.
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II. BACKGROUND
ILL. ADMIN. CODE tit. 35, § 104.204(b) (2004) requires a complete and concise
description of the nature of C&F Packing's activity that is the subject of the proposed
variance. C&F Packing is an Ilinois corporation producing custom private label sausage
products, pizza toppings and other cooked meat items for the food industr. C&F
Packing's manufacturing facility is located at 515 Park Avenue in Lake Vila. C&F
Packing is the main occupant of
the business park along State
Route 83 that serves as the
gateway to Lake Vila. This location, where C&F Packing employs approximately 150
people, is its only facility. C&F Packing began its operations in Chicago in the 1940s,
moved its operations to Elk Grove Vilage in 1986, and again moved its operations to
Lake Vila in 2000.
A. ENFORCEMENT BY THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
Recent enforcement activity by the Ilinois Environmental Protection Agency (the
"Ilinois EP A") has given rise to this Petition. On November 1, 2004, the Ilinois EP A
issued a Notice of Violation ("NOV"), attached hereto as Exhibit E, to C&F Packing for
three alleged violations. One of the alleged violations was that C&F Packing's
wastewater treatment facility had slight variations from what was permitted under Ilinois
EPA Permit 2002-EN-0089-1.! The other alleged violations, which have been fully
addressed by C&F Packing, concerned a sewer overflow event and system reliability.
i Specifically, four discrepancies were identified:
1. The curent permt states that there is a 1,900 gallon sump/surge tank at the beginng of
the wastewater treatment system to which all the incoming wastewater is directed. The
wastewater was then pumped from the sump tank to the 18,000 gallon
equalization/gravity separator tank. Curently, all the incomig wastewater is fed directly
to the 18,000 gallon equalization/gravity separator tank via gravity. The 1,900 gallon
tank has been elimiated.
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To address the alleged violation concerning the variations between C&F
Packing's permit and the treatment system at C&F Packing's facility, C&F Packing's
consultant Jeffrey Zak of Scientific Control Laboratories, Inc. prepared a Supplemental
Permit Application (Exhibit B). The Supplemental Permit Application requires three
certifications from governental units: the Northwest Regional Water Reclamation
Facility (operated by the Vilage of Fox Lake, and referred to hereafter as the "NW
WR" or "Fox Lake"), Lake Villa, and Lake County.
On January 5, 2005, the
Supplemental Permit Application was certified by Lake Vila. On January 6, 2005, the
Supplemental Permit Application was certified by Fox Lake. On January 7, 2005, the
Supplemental Permit Application was delivered to Lake County for its certification. To
date, it has remained unsigned.
On Januar 11, 2005, in response to the NOV, C&F Packing submitted its
proposed Compliance Commitment Agreement ("CCA"), a copy of which attached
hereto as Exhibit F, to the Ilinois EP A. In that proposed CCA, C&F Packing attached a
copy of its Supplemental Permit Application. C&F Packing was hopeful that it would be
able to report to the Ilinois EP A at the time of the submission of its proposed CCA that
the Supplemental Permit Application was complete and had been submitted to the Ilinois
EPA's permitting staff. However, at that time, C&F Packing was informed by Lake
County that it required additional time to review the application. (See affidavit of Marin
2. The curent permt states that there are three (3) 5,000 gallon sludge holding tanks. There
are actually four (4) 8,000 gallon sludge holding tanks.
3. The flow schematic submitted with the application for Permt Number 2002-EN-0089-1
depicted the 18,000 gallon equalization/gravity separator tank as being circular. The tank
is actually rectangular.
4. The flow schematic submitted with the application for Permt Number 2002-EN-0089-1
incorrectly stated that the Krofta Dissolved Air Floatation Clarifier had a volume of
18,000 gallons.
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Glab, Exhibit K, infra.) Consequently, C&F Packing was only able to present the Ilinois
EP A with an unsigned copy of the application. In a letter, a copy of which is attached
hereto as Exhibit G, C&F Packing advised the Ilinois EP A that it had obtained signatues
from Fox Lake and Lake Vila, and that it was attempting to obtain a signature from Lake
County.
On February 3, 2005, the Ilinois EP A rejected C&F Packing's proposed CCA,
and on March 17, 2005, the Ilinois EP A issued a Notice of Intent to Pursue Legal Action
("NIP
LA") letter to the C&F Packing, indicating that the NOV issues would be referred
to the Office of the Ilinois Attorney General ("OIAG") for formal enforcement. Copies
of
the February 3,2005 and March 17,2005 letters are attached hereto as Exhibits Hand
I, respectively. On April 18, 2005, C&F Packing met with the Ilinois EP A to discuss the
NIPLA letter. At the time of that meeting, the Lake County Public Works Department
stil would not sign the Supplemental Permit Application.
Since that time, counsel for C&F Packing has had numerous discussions with
attorney Paula Wheeler of the OIAG. C&F Packing and its counsel met with Ms.
Wheeler and members of the Ilinois EPA on July 22, 2005. While C&F Packing has
proposed actions to resolve the alleged violations, including agreeing to submit the
Supplement Permit Application to get Permit 2002-EN-0089-1 amended, C&F Packing
lacks the ability to resolve this enforcement matter with the OIAG due to Lake County's
refusal to sign the Supplemental Permit Application. On October 18, 2005, OIAG fied
its complaint against C&F Packing, a copy of which is attached hereto as Exhibit J. As
long as Lake County continues to refuse to sign the Supplemental Permit Application,
C&F Packing wil be left unable to defend or settle the OIAG's lawsuit.
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B. C&F PACKING'S ATTEMPTS TO OBTAIN CERTIFICATION
FROM THE LAKE COUNTY PUBLIC WORK DEPARTMENT
C&F Packing has made numerous attempts on its own to persuade the Lake
County Public Works Deparment to certify the permit application. C&F Packing has
also reached out to local representatives for support and intervention. Finally, C&F
Packing delivered a final demand letter to Lake County explaining that unless the
Department certifies the Supplemental Permit Application, C&F Packing would seek
relief in the form of a variance before the Ilinois Pollution Control Board.
1. Communications with the Lake County Public Works Department
On January 7, 2005, C&F Packing made its initial effort to obtain a certification
from the Lake County Public Works Departent. (See the affidavits of Marin Glab and
Karly Messick, attached hereto as par of Exhibit K.) The Supplemental Permit
Application submitted to Lake County contained the previous certifications of adequacy
executed by both Fox Lake and Lake Vila.
On February 16, 2005, C&F Packing met with the Lake County Public Works
Department to discuss the Department's refusal to certify the Supplemental Permit
Application. The meeting was attended by C&F Packing secretary/treasurer, Dennis
Olson and plant engineer, Marin Glab, C&F Packing's engineering consultant, Jeffrey
Zak, and Lake County Public Works director, Peter Kolb, Lake County engineer Charles
Degrave, and Lake County engineer Dennis Price. At that meeting, Mr. Kolb admitted
that the certification was being withheld because the Lake County Public Works
Deparment believes it is due unpaid sewer connection fees from Lake Vila. Affidavits
of
Mr. Olson, Mr. Glab and Mr. Zak are attached hereto as Exhibit K, and state that Mr.
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Kolb advised C&F Packing that the certification was being withheld due to the dispute
concerning connection fees and not due to a finding of inadequate capacity.
At that February 16, 2005 meeting, C&F Packing was provided with a copy of a
memorandum prepared by the Lake County Public Works Departent, attached hereto as
Exhibit L. This memorandum outlines the Deparment's concerns over connection fees.
This memorandum was prepared in the weeks following C&F Packing's request for a
certification of the Supplemental Permit Application. Instead of preparing a
memorandum evaluating the adequacy of capacity, and recommending approval or
disapproval of the Supplemental Permit Application based on that analysis, the
Deparment prepared a memorandum on the status of Lake Vila's payment of sewer
connection fees. This memo provides direct evidence of Lake County's finding that the
transport capacity was adequate, where it is reported that the agreed limit for the
Vilage's Southern Interceptor is 11,700 PE, and that the permitted loading inclusive of
the discharge amount in C&F Packing's supplemental permit application is 10,848 PE.2
A subsequent meeting on July 15, 2005 between Dennis Olson and Peter Kolb
likewise failed to result in a change in Lake County's position.
In sum, C&F Packing's direct communications with the Departent have failed to
yield any willingness by the Department to sign the Supplemental Permit Application. In
fact, communication subsequent to submitting the Supplement Permit Application
demonstrated a consistent, obstinate, and improper linking of the certification of the
adequacy of capacity with the dispute between Lake County and Lake Vila over the
payment of sewer connection fees.
2 A PE is a Population Equivalent, equal to 100 gallons per day.
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2. Communications with Local Representatives
Following the April 18,2005 meeting with the Ilinois EP A, and the subsequent
referral of the NOV issues to the OIAG for formal enforcement, C&F Packing initiated
contact with several
local representatives for assistance. On May 18, 2005, C&F Packing
secretary/treasurer Dennis Olson sent emails to Lake County Board Chairperson Suzi
Schmidt and Lake County Board Member Bonnie Thomson Carter, copies of which are
attached hereto as Exhibits M and N, respectively. On May 19, 2005, Mr. Olson sent a
letter to Gideon Bluestein, a staff member for Congresswoman Melissa Bean, a copy of
which is attached hereto as Exhibit O. As explained below, none of these contacts have
yielded any movement by the Lake County Public Works Department from its position.
The email response from Suzi Schmidt on May 19, 2005, included in Exhibit M,
documents a conversation she had with Peter Kolb. In that email.Ms. Schmidt indicates
that she spoke with Mr. Kolb, and that Mr. Kolb was concerned that C&F Packing
believed that the Lake County sewer connection fees could be waived by Lake Vila. She
states "I'm sure that once everyone is around the table, something will be worked out."
While C&F Packing would certainly welcome an opportunity to gather around the table
with all interested paries, this email response from Suzi Schmidt shows that Lake County
is still impermissibly linking the certification of Supplemental Permit Application with
the dispute over connection fees.
With respect to communications with Congresswoman Melissa Bean's staff, C&F
Packing had a meeting with Gideon Bluestein on August 16, 2005. C&F Packing also
provided Mr. Bluestein with a status update on September 8, 2005, a copy of which is
attached hereto as Exhibit P.
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 28, 2005
These requests for intervention and assistance from representatives of the Lake
County Board and Congresswoman Melissa Bean have failed to bring about any
movement by the Lake County Public Works Department from its entrenched position on
certification. While the responses from the representatives have been genuine and have
shown concern, they do not enable C&F Packing to get any immediate relief from Lake
County's position, and as a consequence, C&F Packing is stil
left unable to resolve the
enforcement issues with the OIAG.
3. Demand Letter to Lake County Public Works Department
On September 23, 2005, in a letter from C&F Packing's counsel to Lake County
Public Works Departent director Peter Kolb, a copy of which is attached hereto as
Exhibit Q, the Departent was advised that if after three days, it continued to refuse to
certify the Supplemental Permit Application, C&F Packing would request that the Board
relieve it from the certification requirements of ILL. ADMIN. CODE tit. 35, § 309.222(b)
(2004). On September 29, 2005, counsel spoke with Mr. Kolb, requesting that he execute
the Supplemental Permit Application on behalf of Lake County.
On September 29, 2005, attorney Daniel Jasica of the State's Attorney of Lake
County's office responded to the September 23,2005 demand letter. In that letter, a copy
of
which is attached hereto as Exhibit R, Mr. JasIca further acknowledges the linking of
the connection fee dispute with the certification of the Supplemental Permit Application.
Mr. Jasica states, "(t)he County categorically denies that it has any obligation to sign the
ffP A (permit) and thereby agree to accept additional flows from C&F Packing's facility
when Lake Vila remains so far in arears on its connection fees under the agreement."
The agreement referred to is a 1991 agreement between Lake Villa and Lake County.
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C&F Packing is obviously not a pary to that agreement, and until recently was never
aware of
that agreement. (See Exhibit A.)
The Lake County State's Attorney response underscores the difficulty of C&F
Packing's situation, and provides the greatest justification for the Board to grant the relief
requested. Mr. Jasica has indicated that Lake Vila is responsible to collect the sewer
connection fees and provide those fees to Lake County. Mr. Jasica then explained that
Lake County in turn keeps a portion of that fee and provides another portion of that fee to
Fox Lake. Based on this letter, it is readily apparent that Lake County believes that Lake
Villa owes it a connection fee and in turn Lake County is refusing to certify the
Supplemental Permit Application. Thus, Lake County is using its certification authority
as leverage to resolve a dispute it has with Lake Villa. As a result, C&F Packing cannot
settle the NOV enforcement issues and related litigation with the State of Ilinois because
it cannot get its Supplemental Permit Application approved by the Ilinois EP A and thus
be in compliance without Lake County's certification. Relief from the certification
requirement of ILL. ADMIN. CODE tit. 35, § 309.222(b) (2004) is thus sought to prevent
the intergovernental dispute from disrupting C&F Packing's efforts to resolve its
enforcement matter with the State of Ilinois and come into compliance with the Act.
III. DATA CONCERNING C&F PACKING'S FAILURE TO MEET ILL.
ADMIN. CODE tit. 35. § 309.222(b) (2004)
ILL. ADMIN. CODE tit. 35, § 104.202(c) (2004) requires that the Petition contain
data describing the nature and extent of the present or anticipated failure to meet the
regulation. The regulation for which relief is sought is not a numerical standard, and thus
no data supporting a C&F Packing argument that compliance with the regulation cannot
be achieved is being provided. C&F Packing's ability to comply with ILL. ADMIN. CODE
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tit. 35, § 309 .222(b) (2004) rests with the discretion of the Lake County's Public Works
Deparment since it curently possesses the Supplemental Permit Application with the
executed certifications from Fox Lake and Lake Vila. The Department has taken the
position that it can continue to refuse to certify the Supplemental Permit Application even
though it has determined that the sewer has an adequate capacity to accept C&F
Packing's discharges. Consequently, C&F Packing is unable to submit a Supplemental
Permit Application to the Ilinois EP A that is compliant with the requirement that its
application contain a certification from Lake County. Accordingly, C&F Packing is
requesting a variance from the Ilinois Pollution Control Board relieving C&F Packing of
the necessity of obtaining Lake County's signatue on its Supplemental Permit
Application.
iv. DESCRIPTION OF EFFORTS NECESSARY FOR C&F TO ACHIEVE
IMMEDIATE COMPLIANCE
ILL. ADMIN. CODE tit. 35, § 104.202(d) (2004) requires that the Petition contain a
description of the efforts required to come into immediate compliance. Without the
granting of a varance, the only way for C&F Packing to obtain immediate compliance is
for Lake County to certify the Supplemental Permit Application, and for the Ilinois EP A
to subsequently approve the Application. Without Lake County's willingness to sign the
Supplemental Permit Application, C&F Packing cannot come into compliance with ILL.
ADMIN. CODE tit. 35, § 309.222(b) (2004).
In order for C&F Packing to avoid the regulation, C&F Packing would have to
instantaneously construct an alternative self-contained wastewater treatment operation.
Such a system would have to treat and process wastewater and provide for the discharge
of treated water back to the environment bypassing treatment by the NW WR. If C&F
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Packing could treat and discharge its own treated wastewater, then C&F Packing would
have no need to utilize the Lake County's sewer connection between Lake Vila and the
NW WR. Such an alternative is techncally impracticable ifnot impossible to treat all
of C&F Packing's wastewater. Moreover, this alternative would require additional
permitting from the Ilinois EP A. This alternative is also likely to be cost prohibitive to
C&F Packing, and certainly could not be achieved according to an immediate schedule
which would enable C&F Packing to resolve its pending enforcement action with the
OIAG. The only other option available to C&F Packing is for the Board to grant it a
variance making Lake County's signatue on C&F Packing's Supplemental Permit
Application unnecessary.
v. IMMEDIATE COMPLIANCE WOULD IMPOSE AN ARITRAY AND
UNREASONABLE HARSHIP
ILL. ADMIN. CODE tit. 35, § 104.202(e) (2004) requires that the Petitioner set forth
reasons why immediate compliance with the regulation would impose an arbitrary and
uneasonable hardship. C&F Packing cannot force Mr. Kolb to put his signature on the
Supplemental Permit Application. Without the granting of a variance, the only way C&F
Packing can obtain immediate compliance is for Lake County to certify the Supplemental
Permit Application. Without the certification, C&F Packing is in continuous
noncompliance. The Ilinois EP A canot begin to review the Supplemental Permit
Application and ultimately approve it until it has been certified by Lake County.
The OIAG is requiring that in response to the Ilinois EP A's November 1, 2004
NOV, C&F Packing immediately retur to compliance. On October 18,2005, the OIAG
filed its complaint against C&F Packing in the Lake County Circuit Court, a copy of
which is attached hereto as Exhibit J. In order to address the Count II allegations, C&F
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Packing must update its Permit 2002-EN-0089-1 so that the permit accurately reflects the
wastewater treatment equipment at the C&F Packing facility. Without a certification
from Lake County or a variance removing the requirement that Lake County certify the
permit, C&F Packing will be unable to update its permit and come into compliance.
As described above, the facility has done everything in its power to effectuate the
necessary approvals of the three germane governental units. Two governental units,
Fox Lake and Lake Vila, have completed their certifications, and one, Lake County, has
continued to deny C&F Packing the certification of its permit application for reasons
unrelated to the adequacy of sewer capacity. Lake County is therefore denying C&F
Packing an opportunity to come into compliance.
It should be noted that C&F Packing did receive a certification from the proper
Lake County offcial on both its original 2001 Permit Application (Exhibit C) and its
2002 Supplemental Permit Application (Exhibit D). In the context of the prior
certifications, the denial of the present request for a certification is additional evidence
that Lake County's actions are improper and frstrate the regulatory intent of
ILL. ADMIN.
CODE tit. 35, § 309.222(b) (2004).
C&F Packing has been placed in the hardship of continuous noncompliance by
Lake County's unwilingness to sign the Supplemental Permit Application. The hardship
C&F Packing is experiencing is reaL. As referenced above, C&F Packing has made
numerous attempts to effectuate the signature of Mr. Peter Kolb without success. C&F
Packing faces the very real potential of a civil penalty up to $50,000 and an additional
penalty of up to $10,000 per day if the violation of noncompliance continues. 415 ILL.
COMPo STAT. 5/42(a) (2004). Moreover, C&F Packing maybe forced to surender its
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permit or ultimately be forced to shut down if it canot obtain approval of its application.
Permit 2002-EN-0089-1, condition 8(c); 415 ILL. COMPo STAT. 5/42(e) (2004). A copy of
Permit 2002-EN-0089-1 is attached hereto as Exhibit S. The hardship is not self-imposed
due to the fact that irrespective of its water connection fee dispute, C&F Packing could
have reasonably expected its Supplemental Permit Application to have been executed by
Lake County since the capacity is adequate and previous supplemental permit
applications have been executed by Lake County officials.
VI. COMPLIANCE PLAN
ILL. ADMIN. CODE tit. 35, § 104.202(f) (2004) requires that the Petition provide a
description of a compliance plan. The requirements in the Board's regulations for a
description of a compliance plan are not applicable to this Petition. C&F Packing
requires a varance from the Board's requirement that Lake County certify its
Supplemental Permit Application, an action beyond C&F Packing's control.
VII. ENVIRONMENTAL IMPACT
ILL. ADMIN. CODE tit. 35, § 104.202(g) (2004) requires that the Petition describe
the environmental impact of the activity. Because Lake County's refusal to sign a
statement certifying the adequacy of capacity has nothing to do with water pollution, and
because it is uncontroverted that the receiving sewer has adequate capacity to transport
the proposed discharge, the varance requested wil have no impact on human, plant or
animal
life.
VIII. CITATION TO LEGAL AUTHORITY
ILL. ADMIN. CODE tit. 35, § 104.202(h) (2004) requires that the Petition cite
supporting documents and legal authority. With respect to documents, Exhibits A
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through T are attached to this petition and are specifically referenced herein. With
respect to legal authority, a discussion of
the analogous Hawthorn Realty Group case and
a discussion of the balancing of hardship against environmental impact follow.
Furthermore, legal authority concerning C&F Packing's request that the variance be
applied retroactively is provided in Section XI of
this Petition for Varance.
A. THE HAWTHORN REALTY GROUP CASE
The situation that C&F Packing finds itself in is very much akin to that of
Hawthorn Realty Group in Hawthorn Realty Group. Inc. v. Ilinois Environmental
Protection Agency and Vilage of Lincolnshire, PCB 85-85, 1985 WL 21548 (Oct. 10,
1985). In Hawthorn Reality Group, the Vilage of Lincolnshire refused to certify a
permit application due to a dispute between Lincolnshire and Hawthorn Realty Group
over annexation and property rights. The Board concluded:
The factual question to be addressed deals solely with capacity, not Village policy
on annexation or Hawthorn's property rights which should be addressed in another
foru. The record shows that the capacity is adequate for the proposed
connection, but that the Vilage will not certify for reasons having to do with
other matters. The Vilage's refusal to certify this simple factual question places
Hawthorn in the position of not being able to file a complete permit application.
Given this situation, complying with the regulations constitutes an arbitrary or
unreasonable hardship Hawthorn could seek a mandamus order requiring
certification, but this would consume both public and private resources without
resolving the underlying issue. The Board rejects the argument that any hardship
is self-imposed, because Hawthorn can reasonably expect the Village to certify
line capacity without imposing extraneous conditions regardless of other issues
which may be in dispute. Such conditions are improper and frstrate the
regulatory intent.
¡d. at *2. C&F Packing should reasonably expect Lake County to certify capacity
without the imposition of conditions concerning Lake Villa's payment of sewer
connection fees. The sole question is one ofline capacity. Applying the Board's holding
in the Hawthorn Realty Group case to the case at bar, it is clear that Lake County's
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refusal to execute the Supplemental Permit Application is improper and frstrates the
regulatory intent of
the certification requirement.
B. BALANCING THE HARSHIP OF CERTAIN ENFORCEMENT
AGAINST THE ENVIRONMENTAL IMPACT RESULTING FROM
THE VARANCE
In the consideration of a variance request, the Board is required to balance the
impact the variance will have on the environment against the hardship that will be
endured by the petitioner. See Marathon Oil Co. v Environmental Protection Agency,
242 II App.3d 200, 610 N.E.2d 789 (1993); Willowbrook Motel v. Pollution Control
Board, 135 IlL. App.3d 343, 481 N.E.2d 1032 (1985); Monsanto Co. v. Pollution Control
Board, 67 Il.2d 276,367 N.E.2d 684 (1977).
In Marathon Oil, Marathon sought a vanance from a wastewater discharge
standard for chloride. Marathon presented evidence that the concentration of chloride it
needed to discharge would not damage the environment of the stream or endanger the
species within the stream. 242 II App.3d at 205. According to Marathon, the
environmental impact of the requested variance was zero. ¡d. The Cour recognzed that
Marathon would suffer a hardship if the Board failed to grant its requested variance.
This certainty of a future violation places Marathon in the unenviable position of
having to decide whether to (1) violate the Board's rule and suffer possible
prosecution and substantial fines and penalties; (2) shut down; or (3) slow (it's
manufacturng process.)
¡d. at 207. While remanding the evidentiary question of the accuracy of Marathon's
claim of no environmental harm back to the Board, the court explained the balancing as
follows:
(I)f we assume arguendo that Marathon's evidence that the variance would not
damage the environment is true, then the hardship to Marathon becomes more
apparent. Marathon could be prosecuted and punished or forced to slow or shut
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down, costing Marathon, its employees and the economy a monetary loss, even
though the proposed discharge would not or could not harm the environment.
¡d.
Similar to Marathon Oil, the variance requested by C&F Packing would result in
no environmental impact, as previously explained herein. However, the substantial
burden C&F Packing continues to suffer is ongoing noncompliance and a corresponding
enforcement action by the OIAG. Without relief, C&F Packing wil be forced to shut
down costing C&F Packing, its employees and the local economy. Thus, following the
balancing analysis of Marathon Oil, the hardship to C&F Packing is substantial, arbitrary
and unreasonable, while the granting of the variance would not adversely impact the
environment. Therefore, the balancing test favors granting C&F Packing's requested
vanance.
In Wilowbrook, the petitioner was unable to construct a hotel on a property in
which it had an interest because the sewage treatment plant would not grant the
landowner a permit. 135 IlL. App.3d at 344. The sewage treatment plant was on
restricted status, meaning that the plant was operating at the limit of its design capacity.
¡d. The plant was also not able to comply with the standards of its NPDES permit. ¡d.
The petitioner sought a variance from the Board so that it could discharge to the sewer
system despite the treatment plant's restricted status. The Board was unsympathetic to
the petitioner's situation, noting that the petitioner took the interest in the land at the time
that the facility was under a cour order on matters concernng its capacity, and thus
gambled on its ability to obtain permits. ¡d. at 345. The Board found that the petitioner's
economic condition was self-imposed. ¡d.
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Unlike the petitioner in Willowbrook, C&F Packing has already developed and
operated its facility for several years. The sewage treatment facility to which C&F
Packing is connected is not on restrcted status, and all of the pertinent governental
units have determined that there is adequate capacity to accept the proposed permitted
discharges. C&F Packing did not engage in any risk-taking like the Willowbrook
petitioner, and it is fully reasonable for C&F Packing to have an expectation that its
discharge would be permitted. Thus C&F Packing's situation cannot be characterized in
any way as self-imposed.
The Wilowbrook case also addresses the arguent that any increase in discharge
can be considered an environmental impact, albeit marginaL. The case acknowledges that
"lines must be drawn somewhere even though each successive increase in the load in a
sewer may have minimal effect." ¡d. at 349, quoting Springfield Marine Ban v.
Pollution Control Board 27 Il. App.3d 582, 587, 327 N.E.2d 486 (April 17, 1975).
However, in the Willowbrook and Springfield Marne decisions, the variances being
requested were for permission to discharge to an already overburdened sewage treatment
facility, where even a marginal increase in discharge to an overburdened system can be
considered to have some environmental impact. As evidenced by certifications by Lake
Villa and Fox Lake on its pending Supplemental Permit Application, C&F Packing is
discharging into a system with adequate capacity, and thus the discharges do not even
have a minimal impact on the environment.
In Monsanto, the Ilinois Supreme Cour ultimately agreed with the Board's
decision to deny a variance to Monsanto, who had requested relief from a mercury
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discharge standard. 67 Ill.2d 294. Monsanto was technologically unable to comply with
the required mercury standard. ¡d. at 293. The Supreme Cour found that
it is not necessarly arbitrary and capricious conduct for the Board to set a
standard which a petitioner cannot adhere to at the present time, or, if absolutely
necessary to protect the public, set a standard with which there can be no
foreseeable compliance by petitioner.
¡d. The Supreme Court embraced the "technology forcing" standards of the mercury
regulations that the Board adopted,. and said that the Board did not have to create an
exception for those that could not meet the standard because the protection of public
health was too important. ¡d. Unlike the relief from the mercury standard sought by
Monsanto, the relief that C&F Packing seeks does not impact the level of environmental
protection. C&F Packing's requested relief is only to allow the permitting of the
discharge into a sewer system that has an adequate capacity. The relief will have an
administrative effect only, allowing C&F Packing to be brought into compliance. In this
context, the hardship of being forced into noncompliance outweighs the nonexistent
environmental harm of granting the varance.
Finally, in the Board's recent opinion in Citgo Petroleum Corporation and PDV
Midwest Refining. L.L.c. v. Ilinois Environmental Protection Agency, PCB 05-85
(April 21, 2005), Citgo was a pary to a consent decree with the Agency, under which it
was required to substantially reduce its air emissions from a refinery. PCB 85-85 at 4.
However, in order to meet the air emission standards, Citgo required a variance from
water discharge standards. Id. Pursuant to the consent decree, Citgo installed scrubbers
that resulted in water discharges exceeding the Board's standard for total dissolved solids
("TDS"). ¡d. The Board granted Citgo a variance, holding that requiring Citgo to
complete a substantial water pollution control project for TDS discharges, in addition to
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the actions already being undertaken by Citgo to address the air emissions, was an
arbitrary or uneasonable hardship that outweighed any injury to the public or the
environment. Id. at 14.
A similar situation to that faced by Citgo, warranting the issuance of a varance,
arises in the case at bar. C&F Packing has made a commitment to the OIAG that it will
submit a Supplemental Permit Application to the Ilinois EP A. By doing so, C&F
Packing would be able to settle its enforcement matters with the State of Ilinois, much as
Citgo settled its air emission violations in its consent decree. Just as Citgo needed a
varance to be able to fulfill its commitments made to resolve an enforcement matter
under its consent decree, C&F Packing needs a variance to fulfill its commitment to
resolve its enforcement matter with the OIAG. Without a variance from the Board
relieving C&F Packing of the requirement of a certification from Lake County, C&F
Packing wil remain out of compliance and wil be left unable to fulfill a necessary
requirement to settle an enforcement matter.
ix. PENDING PERMIT APPLICATION ENCLOSED
ILL. ADMIN. CODE tit. 35, § 104.204(i) (2004) requires that the pending permit
application be attached to this Petition for Varance. As referenced above, the
Supplemental Permit Application is attached hereto as Exhibit B. This Supplemental
Permit Application is a copy, and does not bear the signatures of the representatives of
Fox Lake and Lake Vila. (See Marin Glab's affidavit, Exhibit K, supra.) The parially
signed permit application bearng the signatures of representatives of Fox Lake and Lake
Vila is curently located at the office ofthe Lake County Department of
Public Works.
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x. SUGGESTED CONDITIONS
ILL. ADMIN. CODE tit. 35, § 104.202G) (2004) requires that C&F Packing suggest
any conditions for the variance. C&F Packing seeks no additional conditions. This
variance request simply asks for relief for a certification requirement allowing C&F
Packing to deliver the Supplemental Permit Application to the Ilinois EP A with Lake
Villa's and Fox Lake's signatures only, allowing the Ilinois EP A to review and approve
the application, and thereby allowing C&F Packing to return to compliance.
XI. PROPOSED BEGINNING AND END OF THE VARANCE
ILL. ADMIN. CODE tit. 35, § 104.202(k) (2004) requires that C&F Packing propose
a beginning and ending date for the variance. C&F Packing is requesting that the
varance commence retroactively beginning on January 7, 2005, the date of the original
request for certification of the Supplemental Permit Application by Lake County. C&F
Packing is further requesting that the variance extend for a period up to one year from the
time of the Board's decision or until the Ilinois EP A has reviewed and approved the
Supplemental Permit Application, whichever occurs first. C&F Packing recognizes that
this request for a retroactive variance is contrary to the general rule that "in the absence
of unusual or extraordinary circumstances, the Board renders varances as effective on
the date of the Board order in which they issue." DML Inc. v. Ilinois Environmental
Protection Agency, PCB 90-227, 128 PCB 241, 245 (Dec. 19, 1991) (citations omitted).
In DML Inc., DMI sought a variance from volatile organic material ("VOM")
emission limits for its farm implements manufacturing facility in Woodford County. 128
PCB at 241. In 1984, DMI began searching for a paint that would allow it to be both
compliant with state regulations and acceptable to its customers. ¡d. at 242. To do so,
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DMI was given a five year variance. ¡d. at 249. DMI found a paint that appeared
acceptable and began using it in 1989. ¡d. DMI's customers were not satisfied with the
new compliant paint. ¡d. In September 1990, DMI's paint supplier informed DMI that it
was unable to develop a compliant paint. ¡d. at 243. DMI contacted other suppliers as
well, but was unable to find an alternative. ¡d. DMI subsequently fied its petition for a
variance with the Board to allow DMI to use the original paint while DMI explored other
methods to achieve compliance, including continuing to investigate compliant paints and
the installation of afterburner technology. ¡d. at 242-43.
Despite the Agency's objection, the Board granted a retroactive varance agreeing
with DMI's argument that it had a "reasonable expectation that the compliant paint would
be acceptable." ¡d. at 249. The Board found that "under certain circumstances, such as
those in the instant case where DMI has diligently sought relief and.. .made a good faith
effort to maintain compliance," a retroactive varance was appropriate. ¡d. at 250. The
Board also noted that DMI "could not have anticipated earlier that (the) variance would
be needed...." ¡d.
Like DMI, C&F Packing has demonstrated a good faith effort to obtain
compliance. In C&F Packing's case, compliance can only be obtained through the
approval of the Supplemental Permit Application by the Ilinois EP A. C&F Packing has
been unable to submit its Supplemental Permit Application for the Ilinois EP A's review
because of Lake County's refusal to certify the adequacy of the capacity. Commencing
on Januar 7, 2005, C&F Packing has made a diligent, good faith effort to persuade
Director Peter Kolb to certify the Supplemental Permit Application. As explained in
more detail in Section 11.B of this Petition for Variance, C&F Packing attended two
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meetings at the Lake County Public Works Department, reached out to three local
representatives, and finally issued a demand letter explaining the impropriety of Director
Kolb's actions.
Retroactive variances are often granted for procedural delays that are of no fault
to the petitioner. See Allied SignaL. Inc. v. Ilinois Environmental Protection Agency,
PCB 88-172,105 PCB 7,12 (Nov. 2,1989) and Union Oil Co. of
California v. Ilinois
Environmental Protection Agency, PCB 84-66, 63 PCB 75, 79 (Feb. 20, 1985). Two
Board decisions that are often cited where the variance commencement date preceded the
date of filing are Deere & Company, John Deere Harester Plant East Moline Works v.
Ilinois Environmental Protection Agency, PCB 88-22, 92 PCB 91 (Sept. 8, 1988) and
Midwest Solvents Company of
Ilinois v. Ilinois Environmental Protection Agency, PCB
84-5,57 PCB 369 (April
5, 1984).
In Deere, the petitioner had a December 31, 1987 deadline to come into
compliance with VOM emission standards for a paint coating operation. 92 PCB at 91.
The petition had engaged in a ten-year, $10 milion effort to come into compliance. Id.
After several months of operating the new system, it became apparent to Deere that a
"debugging" of the system would be required, and the deadline would not be able to be
met. ¡d. at 92. While the petition for varance was filed on January 21, 1988, the Board
applied the variance retroactively on January 1, 1988. ¡d. at 91 and 95. In granting the
request for a varance, the Board found that "the record demonstrates that Deere has
diligently sought relief and has made good faith efforts to comply...." Id. at 94.
In Midwest Solvents, the petitioner sought an extension of a provisional variance
from the Ilinois EP A for BOD and TSS effluent limitations durng a constrction project,
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because adverse weather conditions delayed the construction schedule. 57 PCB at 369.
The Ilinois EP A requested the petitioner file a standard varance request with the Board.
Id. at 370. The variance request was filed on January 9, 1984, but was retroactive to
December 31, 1983. ¡d. at 369-70. The Board found that "Midwest has been diligent in
seeking relief on a timely basis...." ¡d. at 370.
In both of these retroactive variance cases, where the varance commencement
date preceded the date of fiing, the Board was persuaded to grant the variance in part due
to the diligence of
the petitioner's efforts to comply. C&F Packing's ability to come into
compliance requires it to be able to submit its Supplemental Permit Application to the
Ilinois EPA for review, something C&F Packing cannot do without Lake County's
certification. Up to the time of the fiing of this Petition, C&F Packing made every
reasonable effort to obtain Lake County's certification, and it has consistently refused.
Therefore, the granting of a variance with a commencement date preceding the date of
fiing of
this Petition for Varance is appropriate.
In American National Can Company v. Ilinois Environmental Protection Agency,
PCB 88-203, 102 PCB 215 (Aug. 31, 1989), ANC sought a varance extension for
emission limitations for its can coating manufacturng plants. The variance extension
was being sought for the period of time needed for the Ilinois EP A to review a permit for
pollution control equipment designed to address the emissions. ¡d. at 216. In granting
the retroactive variance, the Board noted:
The Board is inclined not to grant retroactive relief, absent a showing of
unavoidable circumstances, because the failure to request relief in a timely
manner is a self-imposed hardship. However, in this situation, there appears to be
evidence of unavoidable circumstances. The petitioner was diligently working on
compliance through the installation of control equipment and utilization of
provisions of Section 215.207. It appears that the petitioner was on schedule to
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come into compliance by the end of its variance and had no reason to anticipate
the need for an extension. When ANC realized that Section 215.207 could not be
utilized and that an (alternative control strategy) permit would be required, it was
too late to make a timely request for variance extension. Based on these
circumstances, the Board will grant the varance retroactively.
¡d. at 218.
As was the case with ANC, C&F Packing could not have anticipated that a
variance would be needed at an earlier time. C&F Packing's situation, where a public
official has refused to do what he is required to do, that is certify the adequacy of
capacity on the Supplemental Permit Application, by every measure qualifies as an
unusual and extraordinar circumstance, and thus qualifies as an exception to the general
rule that retroactive variances are disfavored. C&F Packing's circumstances were
unavoidable and in no way self-imposed, and a retroactive varance is therefore
appropriate.
In J.M. Sweeny Co. v. Ilinois Environmental Protection Agency, Sweeney had
previously obtained a variance to allow it extra time to install vapor recovery systems at a
gas dispensing operation in Lake County. PCB 96-184, 1996 WL 756335, *1 (Dec. 19,
1996). That petition expired on March 31, 1996. ¡d. Sweeney requested an extension of
that variance, with its petition fied with the Board on February 28, 1996. Id. Sweeny
was unable to install the vapor recovery system before the March 31, 1996 variance
expiration date because Sweeney needed the prior approval of a separate Corrective
Action Plan ("CAP") report related to a release from an underground storage tan. ¡d. at
* 1- 3. At the time of the filing of the petition, Sweeney was unable to obtain the approval
from the Ilinois EP A of its CAP, and as a consequence could not install its vapor
recovery systems prior to March 31, 1996. ¡d. at *7. The Board granted the variance
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retroactive to the time of the expiration of the original variance. ¡d. "Specifically, the
Board (found) that Sweeney's attempts to secure a CAP approval from the Agency
required more time than anticipated." ¡d.
In Sweeney, the Board was sympathetic to the petitioner facing an unexpected
delay in governent action. Similarly, C&F Packing has faced an unexpected delay in
governent action. Given that C&F Packing had every reasonable expectation that Lake
County would certify its Supplemental Permit Application, and given that there has been
a continual delay and ultimate denial of C&F Packing's obtaining of that certification, a
retroactive varance is appropriate.
Finally, as discussed earlier in this section, the Board explained in the Sweeney
decision that the purpose of the rule disfavoring retroactive varances is to avoid untimely
filed petitions. ¡d. at *6. Under the circumstances, C&F Packing's Petition for Varance
canot be characterized as untimely. It was Lake County's unexpected delay, and
subsequent denial, of certification that created the need for the petition in the first place.
C&F Packing could only be expected to fie its Petition for Variance after exhausting its
efforts to obtain that certification from Lake County. C&F Packing's diligent efforts to
obtain Lake County's certification should be recognzed, and consequently the Board
should grant C&F Packing the requested variance, effective January 7,2005.
XII. CONSISTENCY WITH FEDERAL AND STATE LAW
ILL. ADMIN. CODE tit. 35, § 104.202(1) (2004) requires that the petition discuss
consistency with federal
law. The NW WR treatment plant to which the sewage is
transported is permitted under NPDES Permit IL00020958. C&F Packing is a permitted
user of that facility by NW WR Permit No. 05-001. As explained herein, Lake
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County, Fox Lake and Lake Villa have all affirmed that the capacity of the sewage
treatment and transport system is adequate to accept the discharge from C&F Packing.
Compliance with the Ilinois Environmental Protection Act, 415 ILL. COMPo STAT 5/1 et.
seq., the Clean Water Act, 33 US.C. §§ 1251, et. seq., and the underlying regulations
may therefore be assumed as a matter oflaw.
XIII. AFFIDAVIT VERIFYING FACTS
ILL. ADMIN. CODE tit. 35, § 104.202(m) (2004) requires the Petition contain an
affidavit verifying the facts submitted in this petition. The affdavit of C&F Packing
secretary/treasurer Dennis Olson verifying both that the facts stated in this petition are
true and the attached exhibits are true and accurate copies, is attached hereto as Exhibit T.
xiV. NO HEARNG REQUESTED
ILL. ADMIN. CODE tit. 35, § 104.202(n) (2004) requires a statement requesting or
denying that a hearing should be held. C&F Packing does not request hearing on the
Petition. The evidence provided herein adequately advises the Board of the pertinent
facts and legal issue it is being asked to decide.
XV. CONCLUSION
C&F Packing therefore asks that this Board, pursuant to its authority under
Section 35 of the Act, the Boards regulations under ILL. ADMIN. CODE tit. 35, § 104
(2004), and the established precedent found in the Hawthorn Realty Group case and other
cases cited and discussed herein, to grant C&F Packing a variance from the provisions of
ILL. ADMIN. CODE tit. 35, § 309.222(b) (2004) regarding the requirement that the Lake
County Public Works Department, as owner of an intermediate receiving sewer, be
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required to certify that adequate capacity is available to transport the discharge proposed
by C&F Packing.
Respectfully submitted,
~ 11-. .2
Brett D. Heinrch
Dated: October 28, 2005
Brett D. Heinrch
Matthew E. Cohn
Meckler Bulger & Tilson LLP
123 North Wacker Drive, Suite 1800
Chicago, Ilinois 60606
Phone: (312) 474-7900
Fax: (312) 474-7898
brett.heinrch(êmbtlaw.com
matthew.cohn(êmbtlaw.com
N:\2333\pleadinglPetition to PCB for Varance.
doc
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